SHIV TRADING COMPANY Vs. DISTRICT MAGISTRATE/DISTRICT OFFICER

JUDGEMENT

(1.) THE only question for consideration in this writ petition is whether the petitioner firm is entitled to refund of the amount which it deposited at the time of auction. Brief facts are that an auction notice dated 7.8.93 (Annexure 8 to the writ petition) was issued by respondent No. 1 for holding public auction on 10.9.93 for carrying on mining operation for the period from 1.10.93 to 30.9.94 in District Banda. The auction could not be held on 10.9.93, but was held on 27.9.93 instead and then the petitioner turned out to be the highest bidder for zone No. 9. The petitioner's highest bid was of Rs. 18 lakhs. The auction was held under Chapter IV entitling "Auction Lease" of the U.P. Minor Minerals (Concession) Rules, 1963, (for short, the Rules). On completion of the auction, the petitioner's highest bid was provisionally accepted and the petitioner as required by rule 27 clause (e) of the Rules immediately deposited 25% of the amount of bid as security for execution of the lease deed and for due observation of the terms and conditions of the lease and equal amount as first instalment of royalty. This is how total deposit made by the petitioner on the date of auction came to Rs. 9 lakhs. Two persons, namely, Naththu Yadav and Subhash Chandra Dwivedi filed writ petitions challenging the validity of the auction notice dated 7.8.93. In both the writ petitions, the High Court passed interim orders. An interim order dated 8.9.93 which was passed before the date of auction directs that auction proceedings may go on but the bids would not be finalised until further orders of the Court. Subject to this condition, the auction was held on 27.9.93. Last interim order was vacated vide order dated 14.2.94 (Annexure 1 to the counter -affidavit filed on behalf of the respondents) in the case of Subhash Chandra Dwivedi. Thereafter, the petitioner's highest bid was accepted vide order dated 18.2.94 (Annexure 6 to the writ petition). As the interim orders continued for quite some time and the petitioner thought that the lease would not be financially viable, it made an application dated 1.12.93 (Annexure 2 to the writ petition) seeking refund of the total deposit, made at the time of the auction. When there was no immediate response from the respondents, the petitioner sent a telegram dated 3.12.93 reiterating the demand of refund (see Annexure 3 to the writ petition). When nothing was heard' from the respondents, it is pleaded in para 13 of the writ petition that the petitioner filed a writ petition No. 45240 of 1993 on 13.12.93 under Article 226 of the constitution, which was finally disposed of by judgment dated 4.3.94 (Annexure 4 to the writ petition) directing the petitioner to make an application seeking refund to respondent No. 1 and further directing respondent No. 1 to decide such application of the petitioner within ten days. Pursuant to the said judgment of this court, the petitioner made an application dated 11.3.94 (Annexure 5 to the writ petition) to respondent No. 1. The said application was decided by order dated 18.3.94 (Annexure 7 to the writ petition) by respondent No. 1, which was communicated by impugned letter dated 19.3.94 (Annexure 7 to the writ petition) saying that there was no justification to refund the impugned deposit made at the time of auction by the petitioner. In the letter (Annexure 7 to the writ petition), it was further stated that the tender/bid of the petitioner having been accepted on 18.2.94, the petitioner was called upon to take all necessary steps to get the lease deed registered. It was further said that if the petitioner failed to get the lease deed registered within a month from the date of the communication, then the security equal to 25% of the total amount of bid furnished by the petitioner, would be forfeited and the balance amount to the tune of Rs. 4,50,000/ - being, the first instalment, would be refunded. The case of the petitioner is that it was entitled to withdraw its tender immediately after the expiry of sixty days and before the same was accepted under sub -rule (5) of rule 27 -B of the Rules. It is contended that the only restriction under sub -rule (5) is that the tender could not be withdrawn before the expiry of sixty days but after the expiry of sixty days and before the tender was accepted, the petitioner was at liberty to withdraw its tender and that in the application dated 1.12.93 (Annexure 2 to the writ petition) made for refund of the amount, it is implied that the petitioner wanted to withdraw its tender.

(2.) ON the other hand, the case set up in the counter -affidavit is that the auction was held on 27.9.93 subject to the condition that finalisation of bids would be subject to the order of the Court and that unless the interim orders are vacated or modified, bids could not be finalised and that subject to that condition the petitioner participated in the auction and that being so the petitioner was not entitled to withdraw its tender and to claim refund. It is also pleaded that of the two interim orders, interim order in the case of Subhash Chandra Dwivedi was vacated last on 14.2.94 and immediately thereafter final acceptance was made by respondent No. 1 on 18.2.94 and that the petitioner having failed to take steps for getting the lease deed registered within the stipulated time, security furnished by the petitioner, was forfeited. It is further pleaded in para 10 of the counter -affidavit that in view of the plain language of sub -rule (5) of Rule 27 -B read with the Government order dated 5.9.90, no tender can be withdrawn before the expiry of sixty days or until the tender is accepted. Relying on this Government order, learned standing counsel argued that until the date of the acceptance of the tender, no right was vested in the petitioner to withdraw the tender.

(3.) THE two conditions laid down in sub -rule (5) have been separated by disjunction "or" but upon perusal of sub -rule (5) it appears that disjunction "or" has been wrongly used for conjunction "and". For withdrawing a tender, both the conditions in sub -rule (5) have to be established concomitantly and they are not mutually exclusive. It cannot be said that a tender can be withdrawn after the expiration of sixty days even if the same was accepted before the expiry of sixty days. Once a tender is accepted and communication of acceptance is complete, that cannot be withdrawn even after expiry of sixty days. Therefore, the petitioner who wanted to withdraw its tender, would have to a establish both the requirements of sub -rule (5)(1) that the time limit of sixty days expired and (2) the tender was not accepted till then. It is enough to say that a tender could have been withdrawn after the expiry of sixty days. If the tender was accepted before that time limit, then too that could not have been withdrawn.